ADDENDUM. On the Necessity of Protecting the Pacific Populations of Invaded Countries in Continental Wars. By Professor KATCHE NOWSKY. N all international jurisprudence, I know no more interesting In fact, they contain rules tending to mitigate the cruelties of belligerents, and to protect the person as well as the property of the pacific inhabitant of an invaded country. Some of these usages are of great antiquity and of almost universal authority. Such is, for instance, the respect for the white flag and for those who carry it (parlementaires), a rule recognised even by many wild tribes. The necessity of it is evident, as there is no other way for the suspension of hostilities. Before entering fully into the subject, I will try to give some account of all the laws relating to or operative in war. They may be divided into two large branches-national and international. The first consists of the law of military service in time of peace, and the law of battle-fields, or, as it is named in some countries, the law of camps. The law of military service, being much favoured and cultivated by kings, obtained, at least on the continent, very large proportions. In Russia, Austria, Prussia, and other States, we may find voluminous digests of this law. They contain, besides the constitutional law of the army, the principal rules of military administration. There exist also in all countries criminal military law, and courts of justice administering it with great severity, and having particular rules of procedure. The summary jurisdiction of these courts was formerly very large, but now is rather circumscribed, and limited to cases of breach of discipline and other duties by officers and soldiers during actual service. As to civilians, they are subjected to it only for a few offences, especially designated by law, such as attacks on sentries, military guards, convoys, &c. However severe may be the law of military service, being more adapted to times of peace, it cannot answer all the exigencies of war. Accordingly, with the breaking out of hostilities, the largest part of it is necessarily abrogated. Then comes into operation the law of battle-fields, composed of such rigid and arbitrary rules that one may doubt whether it is a law at all, at least in the judicial sense of that word. In fact, all the despotic measures and orders of military powers relating to the supplying of the army with provisions, whatever may be their consequences, are sanctioned by this law. It contains also the criminal law of war, certainly the most merciless of human laws. Some French philosophers of the eighteenth century called it "loi de l'homicide et du meurtre;" at the present time it is more generally known as martial law (loi martiale). I have no space to describe here its various forms or gradations. It is sufficient to say that they signify different degrees of terror. The proclamation of martial law depends on the commander-in-chief. He puts under its rule the invaded country, where he expects the sudden attack of the enemy or the revolt of the population. In the last case, manifestoes are issued, promising the pacific inhabitants protection against personal violence or extortion by soldiers, but they generally remain a dead letter. Martial law gives orders to be instantly obeyed, but its protection comes late or never. It knows scarcely any distinction between dolus and culpa, and accelerates criminal procedure to such a degree that no time is left to the accused for preparing his defence. A peasant, though unarmed, is always considered as a hidden enemy; his relations with his countrymen, however innocent they may be, are prosecuted as treason, if they only relate to military affairs, or if he dares to resist the commands of the soldiery, and in both cases are punished with death. Appeals against martial courts are to no purpose, and it cannot be otherwise. Commanders-in-chief and other dignitaries seldom interfere with what they call the regular course of military justice, being afraid that any indulgence they show to the accused may compromise their own safety. In fact, those who administer martial law also suffer from its tyranny, their actions being observed with vigilant, though invisible, eyes. They also have to answer for breach of duty, and even for military faults, before the same inexorable tribunals. In short, martial law cuts off many innocent victims, their last resort against injustice being of no avail, as kings seldom use their right of pardon against martial law during war. Thus all the powers of the earth seem to maintain by combined forces the law of battle-fields. As long as it reigns alone, it may be said with Martens, that war is a state of unlimited violence (un état de violences indéterminées). Such are the wars of wild hordes and tribes, tending to exterminate each other. Even with the formation of regular states, when war becomes an art and a science, its cruelty does not sensibly diminish, only its operations become more effective. In order to mitigate the horrors of the law of battlefields, belligerents should recognise at least their common nature. When they consider each other as enemies of God, rebels, or criminals, there is little hope for justice or mercy between enemies. Happily for human nature there is a place for compassion even in war. This natural feeling revolts the hearts of men against martial law. Then religion comes in aid with moral prescriptions. It is remarkable that from immemorial times founders of religions, as well as great legislators, have protested against useless atrocities by belligerents. The first injunctions, to give quarter to the wounded, to spare the crops, and to treat the pacific population of the enemy's country mercifully, may be found in the ancient Indian Code of Menu. The Amphictyonic Council prohibits the Greeks in the name of Apollo to destroy defenceless or unresisting towns, to divert rivers from their walls, and to leave dead enemies unburied. The Koran contains a more detailed code of war. Mohammed prescribes to his followers to be particularly indulgent to Christians and Hebrews, forbidding them to invade the territory of such without previously proposing to them to surrender and accept Islam, and even in case of resistance ordering them to leave their private property unmolested.* As to Pagans and Atheists, they should be converted or exterminated. But the destruction of crops and fruit trees, and the use of poisoned arms, are prohibited by Mohammed against every foe. The Koran allows but temporary treaties with infidels. They should not be concluded for more than ten years, and retain their full validity to the death of the chief of the state (Caliph). But his heir may abrogate them if they are found by him detrimental to the true faith, or contain stipulations prohibited by the Koran. The efforts of the Catholic Church to mitigate the horrors of private feuds in the middle ages also deserve notice. Her principal institutions at that time were the Pax and Treuga Dei. Acting by preaching or admonition, and in extreme cases by severe punishment, she succeeded at least in establishing peace on her own domains, and in forbidding private hostilities on certain days commemorating the life of our Saviour, and sacred to Christians-from Friday to Monday, from Advent to the Epiphany, during Passion and Holy weeks, &c. She took also under her protection public roads, and travellers going to Rome, to Jerusalem, or to St. Jago in Spain, for religious purposes. But her intervention in the wars between Christian and Mussulman was not so happy, and not only has brought discredit on her moral authority, but had other fatal consequences for Christianity. By denying the validity of treaties with infidels and heretics, she often led belligerents to cruelties. Thus, the great battle of Warna would never have been lost by Ladislaus, King of Hungary, if he had not followed the insinuations of the Cardinal Cesarius to break the armistice with the Turks. To the end of the middle ages the popes tried to introduce into the relations of Christian faith the bad practice of liberating kings from their oaths; but they easily under These rules have been recorded and preserved by an Arabian canonist, Caduri. His book was translated into Latin, and published in 1825, at Leipsic, by Rosenmüller, under the name "Institutiones Juris Mohamedani," &c. There is a curious inscription on the tomb of the unhappy king: Romulidae Cannas, ego Varnam clade notavi stood the danger of this pretension, and successfully opposed it by inserting in their treaties a clause by which they obliged themselves neither to seek such liberation nor to accept it from the Church. Thus, the Church has not always stood on the side of justice. It must be added that military as all professional men did not like intervention from outside. Martial law could not be mitigated in any other way but by their combined efforts. They should only gain mutual confidence. We have seen how long the way to it was obstructed by passion and prejudice. International customs, in the true sense of the word, could not grow before the rule of a Roman philosopher was recognised in practice. The great service rendered to humanity by chivalry consisted chiefly in fidelity to this great principle. The crusades may be considered as the best epoch of chivalry. It extended then as an institution throughout Europe. All the nobility were educated then in its noble spirit, and by preparing themselves for the pursuit of arms, brought into the practice of war large sentiments of honour. The ideal of a knight was to follow the example of Roland-Mieux vaut mourir que la honte me ronge. He was the slave of his promises, and took upon himself the duty of protecting women, and to observe generous conduct towards the enemy. Thus chivalry may be considered as the primary source of modern customs mitigating war, as well as of all military conventions. Unfortunately, its influence was soon limited by the introduction of regular armies, and by its own corruption. It must be added, the knight never treated a soldier or a peasant as having any rights. Thus the customs of chivalry had little if any influence upon the conduct of belligerents towards the pacific population of invaded countries. This part of international law consists up to the present time of fragmentary rules, some of which have rather a moral than a judicial character, and the others are not adapted to the exigencies of our time. As to the jurists, they commented on the Roman law of war. I will say here a few words of its principal rules. Some authors are still inclined to ascribe to the ancient Roman law of war an international origin. It may be true that some of its institutions are derived from neighbours, as the college of Fetiales, the recuperatio, &c., but it is no less true, that these institutions soon lost their original character in Rome. In fact, the Fetiales did but sanction with their declaration all the wars of the Romans, whether just or unjust. Recuperatio seems to have had more importance. It obliged the Romans to settle their disputes with their neighbours in an amicable way, but the power of the recuperators (arbiters) was soon reduced by the Senate to cases of private law. Treaties on equal terms also disappeared in the first years of the Republic. From the destruction of Carthage, Romans looked upon all their enemies as rebels, and consequently gave no quarter to those taken in arms. As to the peasantry, their fate was left to the mercy of the commander-in-chief. To the end of the Republic, plundering became the principal end of war, and it was quite conformable to their law, which considers capture as the best title to property. It is true that the possession of their lands was usually left to the vanquished people, but the domains belonging to Government were regularly confiscated and distributed to the generals. Prisoners were treated as slaves; some of them became the property of the state, and were employed for public works, or served as gladiators. But greater vengeance fell upon kings and commanders-in-chief; they were conducted to Rome, made part of the triumph, and afterwards thrown into prison to be executed. Nearly the same custom prevailed during the Empire. Even such persons as Titus-the consolation of humanity-made human blood flow in torrents. As to the emperors and generals who made war in Germany, they treated her inhabitants as wild beasts. From all this it may be safely concluded that Roman law rather retarded and obstructed the formation of milder customs of war in Western Europe. In fact, from the middle ages nearly to the present century, we find scarcely any limitation of the so-called right of conquest. Taking various forms according to the general spirit of different ages, it assumed a more atrocious character in times of religious persecution and of political excitement. There are few nations in Europe who have retained their institutions under foreign rule. I return now to the principal subject of this paper, namely, to the conduct of belligerents towards the pacific inhabitants of the country. The latter were also subjected to the iron rule of Roman law. The clergy tried to interpose in their favour with commanders-inchief, and succeeded in some cases in alleviating their sufferings, but this mediation led to no change of warfare. With the Reformation came, in Europe, the epoch of religious wars. Catholics and Protestants, having forgotten their common Christianity, began to persecute each other as heretics, or enemies of God. It may be easily imagined what atrocities were then committed by men inflamed with fanaticism. They gave no quarter to the wounded, and attacked unarmed peasants with the same fury as soldiers. Such was the thirty years' war. The immortal book of Grotius appeared at that time. In the introduction to it he says, "that he saw such horrors committed in war by Christians against each other, that savages would be ashamed of them." It was in vain that Gustavus Adolphus tried to maintain strict discipline in his army, and to protect the population of invaded countries from the brutality of his soldiers. His example stands alone in the annals of that war. the end of it, many districts of Germany presented a desert inhabited by wolves. As to men, they had been exterminated, or had left their homes. The peace of Westphalia put an end to religious dissensions in Europe, but could not prevent the revival of the policy of conquest. France and Sweden being then the most powerful states, began to attack their neighbours, and tried to enlarge their possessions. Hence followed a series of wars, which raged with but few intervals in Western Europe up to the peace of Utrecht, and in Eastern, to the peace of Nystadt. These wars were certainly not so exterminating as the wars of the Reformation, At |